GAURI SHANKER SURAJMAL Vs. MOOLCHAND PANNALAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff directed against the concurrent judgments of the lower Courts, passing a decree for the price against defendant No. 3 Vendor, and refusing to pass any decree against defendants 1 and 2, who as Arhtias keeping the goods on his behalf, still refused to deliver them to the plaintiff in accordance with the delivery order from the vendor. The questions for decision are whether the delivery order given by defendant No. 3 to the purchaser-appellant made him the owner of the goods, and as such competent to bring a suit in tort (action detinue or conversion) against defendants 1 and 2. Secondly, whether on the materials available we can hold that the goods were worth on the date of refusal of delivery, anything more than what the plaintiff had paid to the vendor (defendant 3 ).

(2.) THE facts as found by the lower Courts are the following. The plaintiffs originally, both father and son but now the latter alone surviving, had lent money to Rustum Khan, uncontesting defendant-respondent No. 3. The latter manufactures charcoal and at the time of transaction, he had 800 bags of it, stored for sale, with the adhtias-defendants 1 and 2 (father and son ). On 23-41950 he sold to the plaintiff these 800 bags of charcoal for the sum of Rs. 1,845/which he owed them. He also wrote a delivery order directing the adhatias, to deliver immediately on demand to the plaintiffs the goods, which he already describes as "their charcoal". Accordingly, the plaintiff went to them on 30-51950, presented the delivery order, and demanded the goods. But the defendants 1 and 2 asserted that the goods were in pledge to them for a loan that Rustam Khan had taken and that they would not deliver them. They did not claim any commission such as is usual for the commission agents to charge from the vendor or from the purchaser; nor did they express any doubts as to the genuineness of the delivery order. The plaintiff accordingly brought this suit against all the there. Against Rustam Khan the suit can be on the basis of a contract; but against the ethers the suit can He in tort, only if the delivery order had the effect of making the plaintiff owner of the goods as in fact has been stated by the vendor in the order itself. In the lower Courts defendants 1 and 2, who alone contested, urged that they were holding the goods in pledge for a debt. The question was not whether Rustam Khan owed them any money, but whether there was a charge on those goods by way of a pledge, over and above what might be claimed by way of commission on sales howsoever effected. Both the courts have found on the facts that the goods were not in pledge, and, that the entry in the books of the contesting defendants to that effect is a piece of forgery. This is a clear finding of fact which I accept. I also note that the defendants 1 and 2, have taken away from the trial Court the register containing the forged entry. If after the disposal of this appeal, the trial Court considers it just and expedient to start an inquiry about the advisability of prosecuting them for using a forged document, the register will have to be called from the defendants.

(3.) THOUGH the lower Courts have rejected the plea of pledge they have still passed a decree only against the vendor for the sale-price, and none against the defendants 1 find 2. The relevant parts of the first appellate Court's judgment are not very clear to me; but the trend is that the whole transaction was an arrangement proposed for the satisfaction of the debt payable by Rustam Khan to the plaintiff. By the defendants 1 and 2 refusing to honour the delivery order and make over the goods to the plaintiff, this proposal was frustrated. Therefore, the status quo ante was restored, and the vendor became liable to refund the price. If on the date of what that Court considered to be the frustration of the agreement, the price had been higher than that on the date of the sale, the vendor would have been liable to pay the difference as well. Actually, the evidence on the price at the place of intended delivery was very little; any way, the lower courts did not give a finding on this.